Mr X and Irish Water (IW)

Whether IW was justified in its decision to refuse access to records and parts of records comprising reports presented to the IW board by its Managing Director (MD) between 1 January 2014 and 21 February 2015 on the basis of sections 29(1)(a), 30(1)(c), 36(1)(b) and 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 21 February 2015, the applicant made an FOI request to IW seeking access to all MD reports presented to the IW board by John Tierney from 1 January 2014 to that date. IW refused access to parts of the records on the basis of sections 29(1)(a), 30(1)(c), 32(1)(a)(ii) and (iii), 35(1)(a), 36(1)(b) and 37 of the FOI Act. The original decision was upheld in the internal review decision of 8 June 2015. The applicant wrote to this Office on 27 June 2015 seeking a review of the decision. This is one of two similar reviews from the same applicant conducted by this Office. The first review, case number 150057, concerned the minutes of board meetings of IW and the decision issued in that case on 15 December 2015.

During the course of this review IW released a substantial number of additional records. However, the applicant wished to pursue the review in respect of the information for which exemptions were still claimed. Using the numbering system adopted by IW, the remaining withheld parts are redacted paragraphs and parts of sentences in records 5 (page 8), 6 (page 12), 7 (page 5, 6, 7, 8 and 10), 8 (page 4, 5, 7 and 12), 10 (page 5 and 6) and 11 (page 6 and 7). IW relied on sections 29(1)(a), 30(1)(c), 36(1)(b) and 37 to refuse access to these records. Submissions have been received from IW and the applicant and I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to IW's decisions on the matter and its communications with this Office, as well as the applicant's communications with this Office and IW. I have also had regard to the provisions of the FOI Act and the contents of the records.

Scope of the Review

This review is concerned solely with whether IW was justified in refusing access to the withheld parts of the records identified above on the basis of sections 29(1)(a), 30(1)(c), 36(1)(b) and 37 of the FOI Act.

Preliminary Matters
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the withheld material is limited as is the detail I can include in my analysis and findings.

It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on IW to satisfy the Commissioner that its decision to refuse access to the records was justified.
I should also explain that a review under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court in Minister for Education and Science v Information Commissioner [2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Analysis and Findings

Section 37 - personal information
IW refused access to parts of records 7 (page 5), 8 (page 5), 10 (page 5) and 11 (page 6 and 7) on the basis of section 37(1) of the FOI Act. Section 37(1) provides that access to a record shall be refused if access would involve the disclosure of personal information. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 37(2) contains certain exceptions, which include if the person to whom the information relates consents to the disclosure of the information.

IW released the names of journalists who made FOI requests as they appear in these records. I accept that the redacted names appear to be those of private individuals seeking information in a private capacity (e.g. about their property) and that, as such, they contain personal information relating to individuals (other than the requester) who are identifiable from the content. On that basis, I find that the parts identified above are exempt on the basis of section 37(1) subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2) and section 37(5)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here.

Section 37(5) of the FOI Act provides that a request which would fall to be refused under section 37(1), may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest
This leaves me to consider, under section 37(5)(a), whether the public interest in granting the request outweighs, on balance, the public interest in upholding the privacy rights of the individuals concerned.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

It seems to me that any public interest in openness and transparency in relation to how IW reported on its FOI decisions has been served to some extent by the release to the applicant of substantial parts of Records 7, 8, 10 and 11, including details of journalists and of the type of requests processed. Having weighed the competing public interest factors in favour of and against release, in the circumstances of this case I consider that, on balance, the public interest that the right to privacy of the third parties should be upheld outweighs any public interest in granting the request for access to these parts of the records. I find, therefore, that IW was justified in refusing access to the names concerned under section 37 of the FOI Act.

Section 31(1)(a) - Legal Professional Privilege
While IW refused access to part of record 8 (page 4) on the basis of sections 29 and 30, I consider that section 31(1)(a) of the FOI Act, which is a mandatory exemption, is the more appropriate section to consider here. Section 31(1)(a) provides that a request shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:-

confidential communications made between the client and his or her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and

confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated or pending litigation (litigation privilege).

Unlike several other of the exemptions in the FOI Act, the provision at section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Having examined this record, I note that it discloses legal advice received from the Attorney General's office and therefore advice privilege applies to this record. Accordingly, I find that section 31(1)(a) of the FOI Act thus applies to exempt record 8 (paragraph 2 of section 2.2 of page 4).

Section 29(1)(a) - Deliberative Process
IW refused access to record 7 (parts of page 6 and 10) under section 29(1) of the FOI Act. This section provides that (a) an FOI body may refuse to grant a request if the record concerned contains matter relating to the deliberative process of an FOI body and (b) the granting of the request would be contrary to the public interest. For section 29(1)(a) to apply, the record must contain matter relating to the deliberative process and the process must be the deliberative process of an FOI body. Secondly, section 29(2) provides that section 29(1) does not apply in certain circumstances. For example, section 29(2)(b) provides that section 29(1) does not apply to a record in so far as it contains factual information. The exemption is subject to a public interest test and the public interest test is stronger than the public interest test in other provisions of the Act - it must be shown that the granting of the request would be contrary to the public interest.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

Having examined these records, I note that the redacted portion of record 7 (page 6) concerns proposals concerning IW board minutes. IW contended that the matter is under deliberation with the Department of Public Expenditure and Reform and that the withheld paragraph should not be released as the premature release of the record would compromise IW's position in those discussions. However, while there is some evaluation of competing options and consideration of proposals or courses of action in this record, it has not shown how release would be contrary to the public interest.

Record 7 (page 10) contains information concerning cash flow and funding of IW for 2014. Much of the redacted information in this record is factual and therefore section 29(2) dis-applies section 29(1). In relation to the non-factual elements, I accept that release of a particular record at a particular point in time could be contrary to the public interest but that with the passage of time this would no longer be the case. It is also possible that release of sensitive information may be premature where the deliberative process is at an early stage or is ongoing. It seems to me that the 2014 situation is historic and that IW has not shown how release of this information (which in the case of some financial information was clearly sensitive at the time) could be contrary to the public interest now. Therefore, I consider that IW has not justified its reliance on this exemption and I find that section 29(1)(a) does not apply to exempt record 7 (part of page 6 and 10).

Section 36(1)(b) - Commercially Sensitive Information
IW relied on section 36(1)(b) to refuse access to parts of records 5 (page 8), 6 (page 12), 7 (page 7, 8 and 10), 8 (page 7 and 12) and 10 (page 6). Section 36(1)(b) protects information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. In effect, this section provides for the protection of commercially sensitive information subject to certain exceptions and a public interest balancing test.

For section 36(1)(b) to apply, it is not sufficient that the information at issue comes within the description of information in the exemption, it is also necessary that the relevant harm test is met. The essence of the test is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection 1(b) is that disclosure "could reasonably be expected to result in material loss or gain ". The Commissioner takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, the Commissioner takes the view that , in invoking "prejudice" the damage which could occur must be specified with a reasonable degree of clarity.

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.

Records 5 (page 8), 7 (page 7 and 8), 8 (page 7) and 10 (page 6)
The information withheld in records 5 (page 8), 7 (page 7 and 8), 8 (page 7) and 10 (page 6) concerns budgets approved for rent of premises, professional fees, fit out of offices, service charges etc. and is similar to some information withheld by IW in the previous decision referred to above(case number 150057). IW is of the view that release of these records would compromise the organisation's competitive position in that IW operates in the "commercial marketplace" and some records should be afforded the same degree of confidentiality as exists in all commercial organisations. However, IW has not identified the harms that might reasonably be expected to result from release of such details or how release could reasonably be expected to result in material financial loss to IW or any other party. Neither has it explained by reference to the records' content how the competitive position of any person could be prejudiced by release of the amounts and other details at issue here. Having examined the withheld information contained in these records I am not satisfied that IW has justified its claim for exemption under section 36(1)(b) and I find that these parts are not exempt on the basis of section 36(1)(b) of the FOI Act.

Records 6 (page 12), 7 (page 10) and 8 (page 12)
Information redacted in the records identified above contain information on funding of IW for 2014 and the debt funding options between 2014 and 2019. IW contended that the issue of funding is the subject of on-going discussions and deliberations with Government and the premature release of anything that adversely affected these discussions would not be in the public interest. It has not identified the harm that might reasonably be expected to result from release of details of its funding at this point in time. In any event much of the information is now available publicly, in its business plan and other documents published on the internet. For example, the Minister for Environment, Community and Local Government gave funding, loan and subvention figures for IW to the Dail in 2015 and funding projections for 2015 and up to 2021 appear in several government and IW publications. As discussed above in relation to record 7 and the deliberative process exemption claimed, much of the figures and the consideration of the situation in these records relate to 2014. The issues have attracted much public comment since. This Office explained to IW that in order for the burden of proof to be discharged in relation to the section 36 exemption, it would be necessary for IW to identify the harms envisaged by reference to specific information and loss, prejudice etc.

I am not satisfied that IW has justified its claim for exemption on the basis of section 36(1)(b) and therefore find that the section 36(1)(b) exemption does not apply to these parts of the records listed above. In any case, even if I were to find that the exemption was justified, I would have to consider the public interest balancing test and weigh the public interest in releasing the 2014 information against the public interest in refusing the request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of IW. I affirm the decision to refuse access to the redacted parts of records 7 (page 5), 8 (pages 4 and 5), 10 (page 5) and 11 (pages 6 and 7). I annul the decision to refuse access to the remaining withheld parts of records identified in this decision and direct their release.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.